Investor Presentaiton

117 123 smuggling. The tribunal refused to hear the counterclaims on the grounds that they were not closely related to the investor's primary claim. 124 125 However, some IIAS do impose obligations on investors. For instance, Article 13 of the COMESA Investment Agreement (2007) requires that investors and their investments "comply with all applicable domestic measures of the Member State in which their investment is made". A provision of this type, a rarity in IIAS, does not create any new obligations but raises the investors' general obligation to comply with national law to the international treaty level. This, in turn, puts that obligation on an equal footing with the obligations of the host State, and thereby gives a tribunal constituted under the treaty jurisdiction over possible counterclaims. To remove any uncertainty, the COMESA Agreement additionally spells out the right of a State to bring counterclaims 123 Sergei Paushok et al. v. Mongolia, UNCITRAL Rules, Award on Jurisdiction and Liability, 28 April 2011, para. 678. 124 The term "measure" is defined as "any legal, administrative, judicial or policy decision that is taken by a Member State, directly relating to and affecting an investment in its territory" (Article 1.10). 125 See also Article 10 of the SADC Protocol on Finance and Investment (2006): "Foreign investors shall abide by the laws, regulations, administrative guidelines and policies of the Host State"; Article 12 of the Ghana Model BIT (2008): "Nationals and companies of one Contracting Party in the territory of the other Contracting Party shall be bound by the laws and regulations in force in the host State, including its laws and regulations on labour, health and the environment." Recent Indian BITs include a provision that goes in the same direction; Article 12(1) of the India-Nepal BIT (2011) and Article 15(1) of India-Slovenia BIT (2011) state: "Except as otherwise provided in this Agreement, all investments shall be governed by the laws in force in the territory of the Contracting Party in which such investments are made." The idea of including investors' domestic-law obligations in the treaty scope was explored in UNCTAD, 2012a, Policy Options for IIAS, Section 7. UNCTAD Series on International Investment Agreements II

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